Welsh Mfg. Co. v. Fitzpatrick, 8001.
| Decision Date | 04 August 1938 |
| Docket Number | No. 8001.,8001. |
| Citation | 1 A.2d 95 |
| Parties | WELSH MFG. CO. v. FITZPATRICK, City Treasurer. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.
On motion for reargument.
Motion denied.
For original opinion, see 200 A. 981.
Hoyt W. Lark, David B. Lovell, Jr., and Hart, Gainer & Carr, all of Providence, for plaintiff.
Daniel E. Geary, John T. Walsh, and Francis D. McManus, all of Providence, for defendant.
In the plaintiff's motion for leave to reargue this case, the only reason stated for a reargument on the merits is as follows: "The opinion of the court does not take into consideration the law of subjacent support." What is there meant by "the law of subjacent support" appears clearly from other language in that motion; from language quoted therein from a statement made by this court at the close of its opinion in Prete v. Cray, C. T., 49 R.I. 209, 141 A. 609, 59 A.L.R. 1241, after it had decided the case on the basis of the law of lateral support; from what was said on the same point in about a half-page devoted to it in the plaintiff's brief of fifty-eight pages in the instant case; and from the few cases which are cited on that half-page and in the present motion, as being on this point.
This point, as stated in the brief, is that not only is an owner of land entitled to lateral support for it from the adjoining land of another, but also "he is entitled to enjoy his land free from any invasion or trespass either direct or indirect." We do not question the statement quoted, except in the use of the words "direct or indirect." As to that we have some doubt, since, ordinarily at least, the special characteristic of a trespass is its directness.
In the instant case the form of action is trespass on the case and not trespass; and in the first count of the declaration, the only one which was allowed to go to the jury, the only duty which is alleged to be incumbent on the city is "to excavate the earth on Troy Street * * * so as not to take away the lateral support of the land of the plaintiff." The only breach alleged is that the city so conducted its excavations "that the adjacent and subadjacent soil which supported the plaintiff's land was removed." This does not go beyond alleging a breach of the duty previously stated. It does not allege any undermining or invasion of the plaintiff's land or any removal of any of its subsoil or any other conduct by the city which would amount to a trespass.
The introduction of testimony, as set forth in the transcript, does not indicate that any testimony as to facts was...
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Chicago & N.W. Ry. Co. v. City of Riverton, Fremont County
...P.2d 76; Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 147 A.L.R. 945, and cases cited, and see Welsh Mfg. Co. v. Fitzpatrick, 61 R.I. 469, 1 A.2d 95; 5 C.J.S., Appeal and Error, § 1455, page 48, note 37; Decennial Digest, k843 under Appeal and Error. A decision on a po......